The Crown appealed a conditional sentence imposed on an offender convicted of historical sexual offences (gross indecency) committed between 1979 and 1987.
The conditional sentence had not existed at the time the offences were committed, was available for a discrete intermediate period, but was no longer available under the sentencing provisions in force at the time of sentencing in 2017.
The majority held that s. 11(i) of the Charter confers a binary right — entitling an offender only to the lesser of the punishments applicable at the time of the offence and at the time of sentencing — and not a global right to the least onerous punishment available at any point in the intervening interval.
The dissent would have dismissed the appeal as moot following the respondent's death and would have upheld 30 years of consistent judicial interpretation giving s. 11(i) a global reading.
The appeal was allowed, though no new sentence was imposed given the respondent's death.
